By Neil Kirby, Director and Helen Michael, Director and Zamathiyane Mthiyane, Senior Associate

The spread of COVID-19 has caused panic worldwide, with panic naturally flowing into South Africa when the first case of the coronavirus was reported on 5 March 2020. The consequence of the outbreak of what the World Health Organisation (“WHO”) has labelled as a “pandemic”, in a situational report, dated 11 March 2020 (“the situational report”), is being felt not only by everyone at risk of contracting the virus, but also by business owners whose employees may have contracted the virus and who may unknowingly infect customers.

Tedros Adhanom Ghebreyesus, the Director General of WHO said in the situational report “[the WHO is] deeply concerned both by the alarming levels of spread and severity, and by the alarming levels of inaction”, adding that “pandemic” was not a word to use lightly or carelessly. “It is a word that, if misused, can cause unreasonable fear, or unjustified acceptance that the fight is over, leading to unnecessary suffering and death”. The word pandemic has only been used for two worldwide influenza outbreaks – the 1918-1919 Spanish Flu Pandemic and the 2009 H1N1 Pandemic.

As at 16 March 2020, WHO has confirmed 169,610 cases, 6,518 deaths and 123 countries with confirmed cases of the virus. South Africa, as at the date publication, has recorded 116 confirmed cases of COVID‑19 with no deaths reported. As a result of the alarming numbers of reported cases of COVID-19 both worldwide, and now in South Africa, President Cyril Ramaphosa, on 15 March 2020, declared a COVID-19 national state of disaster in terms of the Disaster Management Act No. 57 of 2002, which (subject to any changes) will automatically lapse on 15 June 2020.

In terms of the state of disaster, the President has announced various measures to be taken by South Africa to combat the COVID-19 pandemic, which include:

• imposing a travel ban on foreign nationals into South Africa from high-risk countries such as Italy, Iran, South Korea, Spain, Germany, the United States of America, the United Kingdom and China, with effect from 18 March 2020;
• South African citizens returning from high-risk countries will be subjected to testing and self-isolation or quarantine on return to South Africa;
• all travellers who have entered South Africa from high-risk countries since mid-February will be required to present themselves for testing;
• South Africa has 72 ports of entry in the country which are land, sea and air ports. Of the 53 land ports, 35 will be shut down with effect from Monday, 16 March 2020. Two sea ports will also be shut down;
• schools are to be closed from Wednesday, 18 March 2020 to 18 April 2020;
• social gatherings of more than 100 people are prohibited; and
• where small gatherings are unavoidable, organisers will need to implement stringent measures of prevention and control.

For businesses, therefore, an inevitable consideration is any possible liability that may flow as a result of the pandemic, including the intentional or unintentional transmission of COVID-19 by employees of a business to its clients or customers. The financial implications in the event that businesses are unable to perform certain contractual services, due to restrictions (whether mandatory or precautionary), are also necessary to consider.

The first question that arises in this regard is whether or not a duty of care exists in respect of providers of services (including personal and professional services) to prevent or minimise the risk of transmission of COVID-19. In so far as the spread of infectious diseases is concerned, in S V Phiri 2014 (1) SACR 211 (GNP) (“the Phiri case”) the High Court of South Africa, Gauteng Division, Pretoria, was required to decide an appeal in terms of which the appellant was convicted of attempted murder and sentenced to 6 years imprisonment for having had unprotected sex with the complainant while knowing that he had tested positive for human immunodeficiency virus (“HIV”).

In the Phiri case, the court held at paragraph 9 that:

“It was further argued that the appellant should not have been convicted of attempted murder, but of a less count such as assault with intent to do grievous bodily harm. There is simply no merit in this contention. It is to be borne in mind that the appellant was not convicted of having in fact transmitted HIV to the complainant. The State did not have to go that far. It was sufficient for a conviction on the count of attempted murder, to establish that the appellant, knowing that he was HIV positive, engaged in sexual intercourse with the complainant, whom he knew to be HIV negative, without any preventative measures. This entails the presence of mens rea in the form of dolus evetualis. In this regard, it must be accepted, and we can take judicial notice of the fact, that HIV-Aids has no cure presently, and the infection with the virus is likely to lead to reduced life span”.

The similarities between COVID-19 and HIV are self-evident. Both viruses are transmitted through bodily fluids, reduce your life span and are both currently incurable. Thus, applying the principle derived from the Phiri case, arguably, the intentional transmission of COVID-19 may give rise to possible prosecution as a criminal offence and may also possibly give rise to liability in terms of delict.

In light of the recent declaration of the COVID-19 national state of disaster, and the call by the State to “organisers [of small gatherings] … to put in place stringent measures of prevention and control”, a duty of care has now also arguably been established – which applies to all “organisers” of small gatherings. An “organiser of a small gathering” may, in turn, extend to businesses that set up client or customer meetings, interactions and events.

Having established a duty on businesses to implement certain measures to prevent the spread of COVID‑19, one must consider the nature of the measures to be implemented by businesses. According to the President, the measures must be stringent, albeit that specific measures have not been prescribed. In our view, therefore, each individual business should consider the nature of the services they provide and assess the extent of the risk of transmission of COVID‑19 to clients. The risk identified by a business must then be used to determine the nature of the prevention measures that are to be implemented. The aforementioned measures may range from implementing intensified hygiene control measures, minimising unnecessary physical contact with clients, establishing and implementing new employee policies and protocols that deal with employees who have travelled to high-risk countries or exhibit symptoms associated with COVID‑19 and even cancelling events or appointments, in certain circumstances.

Where businesses fail to take the necessary precautionary measures, and depending on the nature of the business’s conduct, a business may possibly attract liability in the event that a client or customer contracts COVID‑19 – particularly in the event that one is able to prove causation and negligence or intention on behalf of the business or its employees.

In so far as the conduct of employees of a business is concerned, the general rule in our law is that an employer is liable for wrongful acts committed by his or her employee in the execution and during the course of his or her employment. This doctrine, known as the doctrine of vicarious liability, is controversial as the general principle with regard to the commission of wrongful acts is that a person is only liable for acts committed by him- or herself personally. Where the elements of vicarious liability are met, however, the aforementioned principle no longer applies.

In order to establish vicarious liability, one is required to prove a “wrongful act”. Wrongfulness, or the legally-reprehensible nature of a person’s conduct, is, in turn, determined according to the general criterion of reasonableness, which provides that conduct will be wrongful or unlawful if it is objectively unreasonable. In other words, a defendant will commit a wrongful act when, in the light of all the circumstances, the employee fails to behave in a manner which will not harm the plaintiff; and society deems it appropriate that an action should lie against the defendant. Courts also refer to concepts such as the boni mores, the prevailing conceptions in a particular community at a given time, or the legal convictions of the community, when establishing the reasonableness of one’s conduct.

Arguably, therefore, and having regard to the COVID-19 national state of disaster declared by Government, if an employee, acting in the course of his or her employment, fails to take reasonable measures to prevent or minimise the spread of COVID-19 to clients or customers, a risk exists that an employer may be held vicariously liable for the employee’s conduct. Businesses should, therefore, ensure that employees are informed of and implement the necessary, reasonable, measures to ensure that the spread of COVID-19 to clients and customers is mitigated, if not altogether prevented.

In addition to what is set out above, a person will commit a wrongful act if he or she fails to comply with a duty of care prescribed by statute. In respect of health care practitioners and retailers, respectively:

• the National Health Act No. 61 of 2003, the Ethical Rules for Health Care Practitioner published in terms of the Health Professions Act No. 56 of 1974 and the Hippocratic Oath require that health care practitioners practice their profession in a manner that is safe, having regard to the health and welfare of the community. Thus, any health care practitioner who provides health care services or interacts within society with a reasonable suspicion that they may have contracted COVID-19 (or who fails to take any other reasonable steps to minimise the risk of transmission of COVID-19) may be acting in contravention of the aforementioned Acts and Oath; and

• in terms of the Consumer Protection Act No. 68 of 2008 (“the CPA”), Part H in Chapter 2 deals specifically with a consumer’s right to “good quality and safety”. In particular, section 61 of the CPA imposes strict liability on all persons in a supply chain of “goods” that caused harm (which includes death or illness). Section 61 is drafted restrictively in so far as it relates only to “goods”. Despite the omission of any reference to “services” in section 61, a possibility exists that a purposive interpretation may be provided to section 61, which seeks to protect consumers, by extending the liability in section 61 to suppliers of unsafe services – particularly when one has regard to serious nature of the COVID-19 pandemic in South Africa.